Stormwater Memo Mulligan
Once again, EPA finds that it must reconsider its position and has decided to allow the public to comment on a recently issued memorandum. On November 12, 2010, EPA issued a memorandum relating to TMDLs and storm water permits. It was designed to replace a 2002 memorandum regarding the same topics.
The most important discussion found in both of the memoranda relates to the requirement of numeric effluent limitations for storm water discharges. The 2002 memorandum says that such limitations would be “rarely used.” Much to the chagrin of storm water permitees everywhere, the 2010 memorandum completely reverses this position and states that if a site has the reasonable potential to cause or contribute to water quality standards excursions, the storm water discharge permits for MS4s and construction sites “should contain numeric effluent limitations where feasible to do so.”
One problem with the 2010 memorandum is that it was created without public input. As a result, EPA has decided that it will solicit comments until May 16, 2011, for anyone who wants to be heard. EPA will then decide, by August 15th, whether to retain the memorandum without change, reissue it with revisions, or withdraw it. My suggestion is that the regulated community should take EPA up on its offer because the imposition of numeric limitations will likely have a large cost component with little to no commensurate benefit.
For example, and by way of suggestion only, someone might want to take EPA to task on its belief “that there has been an incremental evolution of the storm water permits program and the TMDL program that has been occurring since 2002, such that numeric effluent limitations are no longer as rare as they were in 2002.” I, for one, would like to see the numbers. It seems to me that, at a minimum, tens of thousands of storm water permits are issued nationwide every year. I would certainly agree with EPA that in 2002, those permits that included numeric effluent limitations were very few. The question is how many such permits were issued in 2010? Let’s say it’s 500 (which I think is way too high). I would suggest that such permits are “rare” even in 2010.
Someone else might want to comment that even if a numeric effluent limitations are no longer as rare as they were in 2002, so what? Is there some reason for fixing a system that isn’t broken? Has someone shown that there is a big advantage to be gained? If following the numeric limitations is 2 or 5 or 10 times the cost of the narrative limitations, is that a sensible trade-off?
Yet others might take issue with EPA’s flippant comment that the memorandum does not constitute a
regulation itself, nor does it change or substitute for those provisions and regulations. Thus, it does not impose legally binding requirements on EPA, States, or the regulated community nor does it confer legal rights or impose legal obligations upon any member of the public.
Someone might want to say to the EPA, “really?” If the memorandum is not legally binding and it does not confer legal rights or any obligations on anyone and it cannot be relied upon, then why are we wasting our time? And will public comment suddenly make the memorandum binding? (Note: While I certainly hope that EPA is correct in saying that it has no impact, the United States Supreme Court might disagree with that assessment as it did in last term’s case of Coeur Alaska, Inc. v. SEACC. In that case, the Supreme Court went so far as to say that an unpublished memorandum could be used to reverse a decision by the 9th Circuit that had prohibited a company from turning a lake into a landfill. I wonder if EPA knows about that case.)
In any event, it’s your time to be heard. Use it wisely.
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